JOINT PRESS STATEMENT: FREEDOM UNDER LAW AND THE HELEN SUZMAN FOUNDATION
Freedom Under Law and the Helen Suzman Foundation have become aware that, on 20 October 2016, the National Prosecuting Authority issued a subpoena to the CEO of the Government Pensions Administration Agency, calling on him to provide, among other documents, annexures to the SARS memorandum that is the foundation of the charges against Finance Minister Gordhan, and an affidavit ‘explaining’ the approval of past requests for early retirement.
The subpoena was issued over a week after the NPA announced the decision to charge Minister Gordhan. The timing suggests a desperate, eleventh-hour attempt to prop up a prosecution that, clearly, was hopeless from the start. This is information the NPA should have gathered long before any decision to prosecute was made, and the NPA’s failure to do so underlines the irrationality and unlawfulness of its decision. This is especially so given that the information is likely to be exculpatory.
Today, attorneys for Freedom Under Law and the Helen Suzman Foundation served a supplementary affidavit drawing the court’s attention to the subpoena and its implications. For the supplementary affidavit, which includes the subpoena, please click here .
Text of the supplementary affidavit:
IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE NO: 83058/16
In the matter between:
HELEN SUZMAN FOUNDATION - First Applicant FREEDOM UNDER LAW NPC Second Applicant and
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SC - First Respondent
DR JP PRETORIUS SC - Second Respondent
SIBONGILE MZINYATHI - Third Respondent
THE NATIONAL PROSECUTING AUTHORITY - Fourth Respondent
PRAVIN JAMNADAS GORDHAN, MP - Fifth Respondent
GEORGE "OUPA" MAGASHULA - Sixth Respondent
VISVANATHAN "IVAN" PILLAY - Seventh Respondent
SUPPLEMENTARY FOUNDING AFFIDAVIT
I, the undersigned
do hereby make oath and say that:
1. I am an adult male director of the applicant, the Helen Suzman Foundation ("HSF"), situated at 2 Sherborne Road, Parktown, Johannesburg. I am duly authorised to depose to this affidavit on behalf of the applicants.
2. The facts contained in this affidavit are within my personal knowledge, unless it appears otherwise from the context, and are both true and correct. All legal submissions are made on the advice of the applicants' legal representatives.
3. I was the deponent to the founding affidavit in this matter dated 23 October 2016 ("the founding affidavit") and adopt the definitions use
4. The purpose of this affidavit is to bring to this Honourable Court's attention information which came to the applicants' knowledge after the launching of this application. I submit that the information is highly relevant and should be admitted. I also submit that having regard to the fact that all this information is within the knowledge of the first to fourth respondents and is relatively narrow in remit, and the negligible length of this affidavit, no change to the time periods for responding to the founding papers is warranted in the circumstances.
5. Regretfully, the recent evidence which has emerged has confirmed all the fears of, and the case advanced by, the applicants in the founding affidavit.
Subpoena issued to the Government Pensions Administration Agency
6. On 26 October 2016, the applicants became aware of a subpoena issued to the CEO of the Government Pensions Administration Agency (photographs of which I annex marked "SA1"). The subpoena on its face was issued on 20 October 2016 under section 205 of the Criminal Procedure Act, 1977. It calls on the CEO to submit:
6.1 appendices A and B to the 18 October 2010 memorandum, on which charge 1 and the alternative to charge 1 are based ("the Memorandum"). Those appendices are: (a) the statistics showing that, over the five years prior to August 2010, the GEPF has approved over 3000 requests from various government departments for staff members to retire before the age of 60 with full benefits; and (b) evidence that the former and current Ministers of Finance have approved five such requests over the two years prior to August 201O;
6.2 an affidavit:
6.2.1 explaining the approval of the 3000 requests from various government departments for early retirement on full benefits between 12 August 2005 and 12 August 2010; and
6.2.2 giving an explanation as to whether the GEPF approves requests from government departments for early retirement.
7. The subpoena is an indictment of the investigative and prosecutorial process.
It is also clear that the NPA does and had never completed sufficient investigations nor had sufficient evidence to take the formidable decision to prefer charges against Min. Gordhan. Clearly, any evidence which spoke to the practices and lawfulness of early retirement of public servants with full pension had to be fully investigated and considered before charging Min. Gordhan. This is particularly so where this evidence is referenced in the very document on which the prosecution is based - ie, the Memorandum. The Memorandum is specifically referenced in charge 1 (page 119 of the paginated record in this application). The Memorandum was also referenced by Min. Gordhan in his response to DPCl's questions on 30 March 2016 (see the answer to question 23 on page 88 of the paginated record). The prosecuting authorities were thus expressly directed to, and must have been aware of, the existence of such potentially exculpatory evidence.
8. This evidence was not even sought, much less considered. The decision to prosecute thus clearly failed to consider the actual evidence pertinent to the charge - indeed, it appears as if the first to fourth respondents elected to ignore any facts which had the potential to corroborate the lawfulness of the conduct in question. This not only speaks to the substantive irrationality of the decision to prosecute, but also reinforces the submission that the charges were pursued for an ulterior purpose, in breach of the constitutional mandate of the NPA.
9. The ineluctable conclusion is that the charges are baseless and were made without consideration of all the relevant evidence. Indeed, as set forth in the founding affidavit, on even a prima facie consideration of the law and the facts, it is clear that charge 1 is completely unsustainable, on any basis. That the prosecuting authorities are only now calling for the evidence and considering the applicable laws simply reinforces the unlawfulness of the charges and the abusive and precipitous manner in which they were pressed.
WHEREFORE, the applicants pray for the relief set forth in the notice of motion.
Issued by the Helen Suzman Foundation and Freedom Under Law, 26 October 2016